Goldhar v. Haaretz.com et al.

[Indexed as: Goldhar v. Haaretz.com]

Ontario Reports

Ontario Superior Court of Justice,

Faieta J.

March 6, 2015

125 O.R. (3d) 619 | 2015 ONSC 1128

Case Summary

Actions — Bars — Abuse of process — Ontario-resident plaintiff bringing defamation action in Ontario based on article published on Israeli newspaper's website — Action not constituting abuse of process. [page620]

Conflict of laws — Forum conveniens — Ontario-resident plaintiff bringing defamation action in Ontario based on article published on Israeli newspaper's website — Plaintiff's claim limited to damages for reputational harm suffered within Canada — Jury trial not available in Israel — Israeli court not clearly more appropriate forum than Ontario.

Conflict of laws — Jurisdiction — Ontario-resident plaintiff bringing defamation action in Ontario based on article published on Israeli newspaper's website — Ontario residents reading article — Presumptive connecting factor existing as alleged tort was committed in Ontario — Defendants not rebutting presumption of jurisdiction.

The plaintiff, a resident of Ontario, owned a Tel Aviv soccer club. He brought a defamation action in Ontario based on an article published on an Israeli newspaper's website. The defendants brought a motion to stay the action on the basis that the court lacked jurisdiction simpliciter or was not the convenient forum, or on the basis that the action was an abuse of process.

Held, the motion should be dismissed.

The plaintiff adduced evidence that a number of Ontario residents read the article. As a result, the alleged tort was committed in Ontario, and thus a presumptive connecting factor existed. The defendants had not adduced evidence to rebut the presumption of jurisdiction.

The corporate defendants were based in Israel and the individual defendants were Israeli citizens. None of the defendants had assets in Ontario. The plaintiff had a apartment in Tel Aviv and visited Israel several times a year. There was no evidence that a trial in Israel would cause inconvenience or expense to the plaintiff. Most of the witnesses lived in Israel. The lex loci delicti of the tort was Ontario. The plaintiff had undertaken not to seek to recover damages for reputational harm in Israel or elsewhere outside of Canada. A jury trial was not available in Israel, and the plaintiff wished to serve a jury notice on the defendants. There was no surprise or injustice to the plaintiff's attempt to vindicate his reputation in Ontario, where he lived and worked. On balance, an Israeli court was not a clearly more appropriate forum than Ontario for the trial of the action.

The action did not constitute an abuse of process. The article was read in Ontario and it was not surprising that the plaintiff had sought to vindicate his reputation in an Ontario court.

Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712, apld

Éditions Écosociété Inc. v. Banro Corp., [2012] 1 S.C.R. 636, [2012] S.C.J. No. 18, 2012 SCC 18, 291 O.A.C. 277, 18 C.P.C. (7th) 1, 2012EXP-1451, J.E. 2012-787, EYB 2012-205199, 343 D.L.R. (4th) 647, 91 C.C.L.T. (3d) 105, 429 N.R. 293, 212 A.C.W.S. (3d) 711; Tolofson v. Jensen, 1994 44 (SCC), [1994] 3 S.C.R. 1022, [1994] S.C.J. No. 110, 120 D.L.R. (4th) 289, 175 N.R. 161, [1995] 1 W.W.R. 609, J.E. 95-61, 51 B.C.A.C. 241, 100 B.C.L.R. (2d) 1, 77 O.A.C. 81, 26 C.C.L.I. (2d) 1, 22 C.C.L.T. (2d) 173, 32 C.P.C. (3d) 141, 7 M.V.R. (3d) 202, 52 A.C.W.S. (3d) 40, consd

Jameel (Youself) v. Dow Jones & Co., [2005] EWCA Civ. 75, [2005] Q.B. 947 (C.A.), distd [page621]

Other cases referred to

Breeden v. Black, [2012] 1 S.C.R. 666, [2012] S.C.J. No. 19, 2012 SCC 19, 291 O.A.C. 311, 2012EXP-1450, J.E. 2012-786, 429 N.R. 192, EYB 2012-205200, 17 C.P.C. (7th) 1, 343 D.L.R. (4th) 629, 91 C.C.L.T. (3d) 153, 212 A.C.W.S. (3d) 713; Grant v. Torstar Corp., [2009] 3 S.C.R. 640, [2009] S.C.J. No. 61, 2009 SCC 61, 204 C.R.R. (2d) 1, 258 O.A.C. 285, EYB 2009-167615, J.E. 2010-8, 314 D.L.R. (4th) 1, 397 N.R. 1, 79 C.P.R. (4th) 407, 72 C.C.L.T. (3d) 1, 183 A.C.W.S. (3d) 1173; Machado v. Fontes, [1897] 2 Q.B. 231, 66 LJQB 542, 76 L.T. 588, 45 W.R. 565, 13 T.L.R. 407, 41 Sol. Jo. 507 (C.A.); Prince v. ACE Aviation Holdings Inc. (2014), 120 O.R. (3d) 140, [2014] O.J. No. 1792, 2014 ONCA 285, 319 O.A.C. 163, 373 D.L.R. (4th) 109, 55 C.P.C. (7th) 75, 239 A.C.W.S. (3d) 629; WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, [2008] S.C.J. No. 41, 2008 SCC 40, 175 C.R.R. (2d) 145, EYB 2008-135084, J.E. 2008-1350, 56 C.C.L.T. (3d) 1, 293 D.L.R. (4th) 513, 256 B.C.A.C. 1, 80 B.C.L.R. (4th) 1, 66 C.P.R. (4th) 121, 376 N.R. 80, [2008] 8 W.W.R. 195, 166 A.C.W.S. (3d) 792

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106

Defamation (Prohibition) Law, 5725-1965 (Israel), s. 15

Libel and Slander Act, R.S.O. 1990, c. L.12

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.08 [as am.], 17.06, 21.01(3)(a), (d)

MOTION for an order staying an action.

William C. McDowell, Julian Porter, Q.C., and Ren Bucholz, for plaintiff.

Paul Schabas and Emily Bala, for defendants.

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